Point of Law : Substantial question of Law - Court’s power under Section 100 of the CPC can be exercised only on a substantial question of law and it is no longer res integra that such substantial question of law so sought to be raised has to have a foundation in the pleadings.

JUDGMENT :

Heard Mr. S.P. Roy, the learned counsel appearing for the Appellant and Mr.G.N.Sahewalla, the learned senior counsel assisted by Ms. S. Todi, the learned counsel appearing on behalf of the Respondents.

2. This instant appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 15/09/2007 passed in Title Appeal No. 109/2006 by the Court of the Additional District Judge(FTC) No. 4, Kamrup (Metro) at Guwahati, whereby the judgment and decree dated 25/9/2006 passed in Title Suit No. 109/2006 by the Court of the Civil Judge (Sr. Division) No. 2, Kamrup (Metro) at Guwahati was affirmed.

3. At this stage, it may be relevant herein to mention that both the Courts below had on the basis of a concurrent findings of fact dismissed the suit of the Appellants and decreed the counter claim of the Respondents.

4. Before examining the merits of the matter, this Court may briefly refer to the scope of a Second Appeal as also the procedure for entertaining them as laid down under Section 100 of the Code of Civil Procedure. Second Appeal would lie in cases which involves substantial question of law. The word ‘substantial’ prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to the impact or effect of the question of law on the decision in the lis between the parties. ‘Substantial question of law’ means not only ‘substantial question of law’ of general importance, but also a substantial question of law arising in a case as between the parties. In the context of Section 100 of the CPC, any question of law, which affects the final decision in a case is a ‘substantial question of law’ as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a ‘question of law’, by the Supreme Court or even by this Court, it cannot be said that the case involves a ‘substantial question of law’. It is said that a substantial question of law arises when a question of law, which is not finally settled, arises for consideration in the case but this statement has to be understood in the correct perspective meaning thereby that where there is a clear enunciation of law and the Lower Court has followed or rigidly applied, such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by the Supreme Court or by this Court, but the Lower Courts had ignored or misinterpreted or misapplied the same and correct application of the law as declared or enunciated by the Supreme Court or by this Court would have led to a different decision, the appeal would involve a ‘substantial question of law’ as between the parties. Even where there is an enunciation of law by the Supreme Court or by this Court and the same has been followed by the Lower Court, if the appellant is able to persuade this Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two different viewpoints, it can be said that a substantial question of law arises for consideration. In other words, there cannot, therefore, be a straight jacket definition as to when a substantial question of law arises in a case, it shall depend on the facts of each case along with the decision rendered by the Courts below.

5. The Supreme Court in the case of State Bank of India & Ors. Vs. S.N. Goyal reported in (2008) 8 SCC 92 at paragraphs 14 & 14, dealt with the procedural aspect relating to Second Appeal. The said Paragraphs being relevant are quoted herein below :

“Procedure relating to second appeals

14. We may next ref